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ROBERT HAWTHORNE, INC. v. UNITED STATES DEPT. OF I

March 28, 1958

ROBERT HAWTHORNE, Inc.
v.
UNITED STATES DEPARTMENT OF INTERIOR, John (Fred) A. Seaton, Secretary of the Department of the Interior and M. O. Anderson, Contract Officer and Superintendent



The opinion of the court was delivered by: LORD

Plaintiff is a Pennsylvania corporation, specializing in demolition and excavation operations, which bid unsuccessfully on the demolition of a certain building on lower Walnut Street in the City of Philadelphia. The structure in question is to be razed in connection with the development of Independence National Historical Park in Philadelphia.

Defendant, United States Department of the Interior, operates as one of its services the National Park Service. A subdivision of that Park Service is engaged in the development of the Independence National Historical Park, and defendant, M. O. Anderson, is local director of its activities in that connection as Contract Officer and Superintendent. Defendant, 'John' A. Seaton is, of course, Fred A. Seaton, Secretary of the Department of the Interior and a member of the Cabinet of the President of the United States.

 Invitations to bid on the demolition of the structure in question (Building No. 42 in the project) were issued on January 10, 1958, being accompanied by various conditions and specifications. When the bids were opened by the National Park Service on January 31, 1958, plaintiff's bid of $ 31,624 was second to the lowest. The successful bidder was Lew Morris Demolition Company, Inc. (hereinafter referred to as 'Morris'), with a quotation of $ 28,446.

 Plaintiff contends that the bid of Morris was in fact a conditioned bid, and one which violated the instructions of the invitation to the effect that 'bids should not be qualified by exceptions to the bidding conditions.' The alleged condition is a phrase in the Morris quotation reading, 'The above bid based on using a ball.'

 The 'ball' specification refers to a demolition ball -- a heavy metal sphere commonly used in the razing of structures. it is swung, at the end of a cable, from a crane, and crashed against the structure to be demolished.

 Plaintiff does not contend that the ball is an unusual instrument for the purpose, but asserts that it can be used only in certain situations without endangering the surrounding buildings. It position is that, should the defendant supervisor forbid the use of the ball at any time during the destruction of Building No. 42, bidder Morris will be in a position to demand extra compensation for performance of the contract by means other than the ball. Thus, plaintiff asserts, the Morris bid is not in fact the low bid when viewed in the light of its 'use of a ball' qualification.

 The matter came on for hearing on plaintiff's application for preliminary injunction, which was opposed by a motion to dismiss filed by the United States.

 Discussion here will be directed to the following aspects of the case thus raised: I. Jurisdiction of the Subject Matter; II. Jurisdiction of the Parties; and III. Statement of a Claim upon which Relief can be Granted.

 I.

 Plaintiff contends that injunctive relief may be granted against the Secretary of the Interior, and cites the following cases: Work v. Louisiana, 1925, 269 U.S. 250, 46 S. Ct. 92, 70 L. Ed. 259; Lane v. Watts, 1914, 234 U.S. 525, 34 S. Ct. 965, 58 L. Ed. 1440; Santa Fe Pacific R.R. Co. v. Lane, 1917, 244 U.S. 492, 37 S. Ct. 714, 61 L. Ed. 1275; Chapman v. Santa Fe Pac. R. Co., 1951, 90 § U.S.App.D.C. 34, 198 F.2d 498, certiorari denied 1952, 343 U.S. 964, 72 S. Ct. 1058, 96 L. Ed. 1361; and Chapman v. El Paso Natural Gas Co., 92 U.S.App.D.C. 154, 204 F.2d 46.

 In the last case the Secretary, in the teeth of long standing administrative practice, suddenly sought to impose detailed common carrier regulations on an interstate pipe line which was then in the very process of construction. Mandatory injunction was granted requiring the Secretary to issue the rights of way necessary to permit construction to proceed. In each situation there was a distinct absence of any adequate remedy at law.

 Plaintiff points out that those decisions, and its present case, are distinguishable from instances such as the following in which equitable relief was denied: Federal Power Commission v. Metropolitan Edison Co., 1938, 304 U.S. 375, 58 S. Ct. 963, 82 L. Ed. 1408 and Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638. In the former, it was held that the Court of Appeals for the Third Circuit, 94 F.2d 943, had erred in restraining Federal Power Commission hearings. In the latter it was decided that the Court of Appeals for the First Circuit, 88 F.2d 154, had erroneously held that a District Court, 15 F.Supp. 915, had jurisdiction to enjoin a National Labor Relations Board hearing.

 It is of particular significance that plaintiff's five cases wherein equitable relief against the Secretary of the Interior was granted all came from the courts of the District of Columbia. On the other hand, the two ...


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